IN THE CASE OF: BOARD DATE: 29 November 2023 DOCKET NUMBER: AR20230008249 APPLICANT REQUESTS: through counsel via voluntary remand by the U.S. District Court for the Eastern District of Virginia, reconsideration of Army Board for Correction of Military Records (ABCMR) Docket Number AR20190011318, 20 October 2022. Specifically, counsel requests removal of the applicant's name from the U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI) Initial – Final, 5 August 2014. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Counsel's Complaint to the U.S. District Court for the, 3 May 2023 * Joint Motion to Remand, 8 June 2023 * U.S. District Court for the Eastern District of Virginia Order, 8 June 2023 FACTS: 1. In a brief to the U.S. District Court for the Eastern District of Virginia, 3 May 2021, counsel states their complaint was for a declaratory judgment seeking that the decision by the ABCMR in Docket Number AR20190011318, 20 October 2022, denying the applicant relief was an abuse of discretion, arbitrary and capricious, and contrary to regulation or law, and was seeking to obtain an order remanding this matter to the ABCMR for relief consistent with the Court's opinion. Counsel further notes: a. The applicant was titled for the offenses of for Cruelty of Subordinates, Assault, and Abusive Sexual Contact (Adult) in CID ROI, 5 August 2014. b. At the time of the titling decision, CID applied a "credible information" standard of evidentiary proof to support the titling decision. c. Subsequently, the law changed and the new legal standard for titling is "probable cause," a higher standard than "credible information" (i.e., House of Representatives (H.R.) 6395-227, section 545(c) (known as the National Defense Authorization Act, Fiscal Year 2021).? d. On or about 6 June 2019, the applicant appealed the titling decision to CID. Her appeal was denied on 1 August 2019. Notably, however, one of the advisory opinions from a special agent who opined as part of the appeal process recommended that the titling action was incorrect based on law and regulation. In a well-thought-out opinion, Special Agent (Redacted) articulated the following in an 8th Military Police Group (CID) memorandum (FA – Request for Amendment of Record – (Applicant)), 13 June 2019, in paragraph 2: In accordance with DODI [Department of Defense Instruction] 5505.7 [Titling and Indexing by DOD Law Enforcement Activities], there was no credible information to list then 2LT [Second Lieutenant] [Applicant] in the subject block of the Initial-Final LER [Law Enforcement Report] dated 5 Aug[ust] [20]14 for the offense of Abusive Sexual Contact. There was an error in applying the credible information standard to this offense. The victim per his sworn statement, only detailed then 2LT [Applicant] massaging his shoulders which was associated to the offense of Abusive Sexual Contact. As per MCM [Manual for Courts-Martial] 2012, Abusive Sexual Contact requires sexual contact. Sexual contact is defined as the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person. The upper chest area was mentioned as also being touched within the AIR [Agent's Investigation Report]; however, this area of the body also does not meet definition of sexual contact. Per the AIR, on 5 Aug[ust] [20]14, coordination was effected with the Brigade Judge Advocate who "concurred" then 2LT [Applicant] committed the offenses of Cruelty and Maltreatment, Assault Consummated by a Battery, and Abusive Sexual Contact. The undersigned does not concur with the offense of Abusive Sexual Contact being committed by then 2LT [Applicant]. e. All other advisory opinions from CID disagreed with this analysis from their own special agent. All of those opinions failed entirely to provide any explanation as to why they disagreed and where in the evidence the allegation was supported by credible information. f. The ABCMR reviewed the case in Docket Number AR20190011318, 20 February 2023. By the plain language of the ABCMR decision, the Board applied the old law of "credible information" rather than the current law requiring "probable cause" for a titling decision. g. Where one of the CID case analysts did not even believe that evidence rose to the very low standard of credible information, it certainly would not reach the higher standard of probable cause. The ABCMR failed to provide a valid and sufficient explanation for determining that the titling was appropriate given the clear and undisputed state of the law requiring probable cause. h. The applicant now files this action to obtain the requested relief. The ABCMR and the Secretary of the Army engaged in abuse of discretion, acted arbitrarily and capriciously, and acted contrary to law and regulation in the following particulars: (1) by failing to properly apply the required legal standard of probable cause from H.R. 6395-227, section 545(c) (NDAA Fiscal Year 2021); and (2) by failing to support its decision to deny relief with "reasoned decision- making." i. Counsel requested relief in that the court declare that denial of the applicant's request to amend the titling decision and remove her name from the titling block for the offenses of Cruelty of Subordinates, Assault, and Abusive Sexual Contact (Adult), was arbitrary and capricious, and contrary to law or regulation. 2. In a Joint Motion to Remand, 8 June 2023, the Government and counsel moved the U.S. District Court for the for a voluntary remand of the applicant's case. It notes on remand, the Secretary of the Army, through the ABCMR, will issue a new decision in ABCMR Case Number AR20190011318. In the event the ABCMR maintains its determination after remand that the applicant's request for correction of her military records be denied, the ABCMR's resulting written decisions shall provide detailed reasoning for that determination (see attachment). 3. In the 8 June 2023 order, the Court ordered the action to be remanded to the ABCMR for further consideration and issuance of a new written decision on the applicant's request. 4. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20190011318 on 20 October 2022. 5. The applicant was appointed as a Reserve commissioned officer of the Army on 23 July 2013 in the rank/grade of 2LT/O-1 and ordered to active duty effective 22 October 2013. She executed an oath of office in the Regular Army on 22 October 2013. 6. The Schofield Barracks CID Office memorandum (CID ROI – Initial Final), 5 August 2014, identifies the applicant as the named subject in violation of Article 93 (Cruelty and Maltreatment), Article 120 (Abusive Sexual Contact), and Article 128 (Assault) of the Uniform Code of Military Justice. a. The investigative summary states Sergeant (SGT) notified the Schofield Barracks CID Office, Schofield Barracks, HI, that he was sexually assaulted by the applicant at Building 2075, Schofield Barracks, on or about 1930 hours, 25 July 2014, to 0430 hours, 26 July 2014. (1) The investigation established probable cause to believe the applicant committed the offense of Assault when she intentionally threw her headgear at and hit SGT without provocation while he was assigned as the charge of quarters noncommissioned officer. (2) The investigation established probable cause to believe the applicant committed the offense of Cruelty and Maltreatment when she subjected SGT to repeated offensive comments while subject to her authority as the staff duty officer of the day. (3) The investigation established probable cause to believe the applicant committed the offense of Abusive Sexual Contact when she massaged SGT 's shoulders without his consent. (4) The Brigade Judge Advocate, Schofield Barracks, HI, concurred the applicant committed the offenses of Cruelty and Maltreatment, Assault Consummated by a Battery, and Abusive Sexual Contact. b. The attached exhibits/substantiation show (see attachments for further details): (1) The AIR, 31 July 2014, details receipt of the initial complaint; interviews with SGT , fellow Soldiers, and the applicant; unit coordination which led to the applicant being identified as the perpetrator; crime scene examination; and coordination with the Office of the Staff Judge Advocate. (2) SGT 's sworn statement, 29 July 2014, wherein he states that while working as the charge of quarters noncommissioned officer on 25 July 2014, he was approached by the applicant who made inappropriate comments about his sexuality, hit him in the chest with her patrol cap, and walked behind him and massaged his shoulders. (3) The applicant's sworn statement, 30 July 2014, wherein she states she was the staff duty officer and spoke to SGT during her duty. She notes she made several inappropriate comments in a joking manner about his weekend plans and computer games, which he appeared to take in a joking manner. She denies she massaged his shoulders or touched him physically. (4) The AIR, 5 August 2014, states the applicant arrived for another interview on 5 August 2014. The applicant refused an attempt to gain her cooperation to review the administrative information on the Rights of Waiver Certificate and terminated the interview. She further declined submitting to a polygraph examination. 7. The Headquarters, 25th Infantry Division, memorandum from the Commanding General (General Officer Memorandum of Reprimand (GOMOR)), 3 October 2014, states: You are hereby reprimanded for your demonstrated lack of professionalism and poor judgment. An investigation revealed that while working as the Staff Duty Officer, you made inappropriate and offensive comments to a subordinate Soldier regarding his sexual preference. Additionally, despite being warned that your behavior may be inappropriate, you massaged his shoulders and chest, and behaved in a manner that made him feel uncomfortable. Your behavior is inexcusable. As an officer in the United States Army, you have violated the extraordinary trust placed in you. I now question your judgment as an officer and member of this Division. Examine your conduct in this matter and take the necessary steps to preclude the recurrence of such conduct. I expect your future behavior to be exemplary. This reprimand is imposed as an administrative measure and not as punishment under the Uniform Code of Military Justice. In accordance with AR [Army Regulation] 600-37, Unfavorable Information, 19 December 1986, paragraph 3-4b, I am considering filing this reprimand in your Army Military Human Resource Record. Acknowledge receipt of this reprimand in writing. You have ten days from receipt to submit matters in rebuttal, extenuation, and mitigation. Submit your response, if any, through your chain of command to me. Failure to submit a response will be considered a waiver of this right. I will withhold my filing determination until I have considered any response you may provide. 8. The applicant acknowledged receipt of the GOMOR and requested filing the GOMOR in her local unit file on 15 October 2014. She took full responsibility for her immature and unprofessional conduct; however, she denied massaging SGT 's shoulders. 9. On 7 November 2014, the Commanding Generasepl, Headquarters, 25th Infantry Division, directed permanently filing the GOMOR in the applicant's Army Military Human Resource Record (AMHRR). 10. The applicant was promoted to the rank/grade of first lieutenant/O-2 effective 20 April 2015. 11. The applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) for removal of the GOMOR, 3 October 2014, from her AMHRR. On 31 January 2017 in Docket Number AR20160007854, the DASEB denied her request to remove the GOMOR from her AMHRR. 12. Subsequently, the applicant appealed the DASEB's decision to the ABCMR, requesting removal of the GOMOR, 3 October 2014, and noting it was untrue in its entirety, unjust, and had served its intended purpose. On 21 March 2019 in Docket Number AR20170018038, the ABCMR considered the evidence and determined there was sufficient evidence to grant relief. Based on her contentions, the ABMCR determined the GOMOR had served its intended purpose and directed removal of the GOMOR from her AMHRR. 13. The applicant, through counsel, petitioned the U.S. Army Crime Record Center, CID, on or about 6 June 2019 to amend the ROI Initial – Final, 5 August 2014, by removing her name from the titling block. In formulating a decision, CID reviewed her request by numerous departments within CID (see attachments provided by counsel). a. The 8th Military Police Group (CID) memorandum from Special Agent (Redacted) (Request for Amendment of Record – (Applicant)), 13 June 2019, states he completed a review of the associated documents concerning her request to amend the offense of Abuse Sexual Contact listed within the title/subject of the ROI and opined: In accordance with DODI [Department of Defense Instruction] 5505.7 [Titling and Indexing by DOD Law Enforcement Activities], there was no credible information to list then 2LT [Applicant] in the subject block of the Initial – Final dated 5 Aug[ust] [20]14 for the offense of Abusive Sexual Contact. There was an error in applying the credible information standard to this offense. The victim per his sworn statement, only detailed then 2LT [Applicant] massaging his shoulders which was associated to the offense of Abusive Sexual Contact. As per MCM 2012, Abusive Sexual Contact requires sexual contact, Sexual contact is defined as the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person. The upper chest area was mentioned as also being touched within the AIR; however, this area of the body also does not meet definition of sexual contact. Per the AIR, on 5 Aug[ust] [20]14, coordination was effected with the Brigade Judge Advocate who 'concurred' then 2LT [Applicant] committed the offenses of Cruelty and Maltreatment, Assault Consummated by a Battery, and Abusive Sexual Contact. The undersigned does not concur with the offense of Abusive Sexual Contact being committed by then 2LT [Applicant]. b. The CID memorandum from Chief Warrant Officer Four (CW4) (Redacted), Investigative Operations (Request for Amendment of Record – (Applicant)), 14 June 2019, states he completed a review of the ROI to determine if the credible information standard was correctly applied when the applicant was indexed as a subject for the offenses of Cruelty of Subordinates, Assault, and Abusive Sexual Contact. CW4 (Redacted) opined that "Based upon my review, [Applicant] was properly indexed as a subject utilizing the credible information standard; therefore, the request to be removed should be denied. It Is also my belief that the cited offense has the appropriate investigative finding based upon the legal opinion received; therefore, they should not be altered. c. The CID memorandum (Legal Review of Request for Amendment of Record – (Applicant)) (first page only), 17 June 2019, opined: …Based on the review of the ROI and appeal, I find there is no basis for granting her request for an amendment. There is credible information to support the tilting decision. In accordance with DODI 5505.7, Titling and Indexing Subjects of Criminal Investigations in the Department of Defense, February 28, 2018, a person is titled as a subject in the ROI when there is credible information to believe that person may have committed the crime. Credible information is defined as "Information disclosed or obtained by an investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained investigator to presume that the fact or facts in question are true." I find that this standard has been met. [Applicant] was titled for violation of Article 120, Abusive Sexual Contact; Article 128, Assault Consummated by a Battery; and Article 93, Cruelty and Maltreatment, Uniform Code of Military Justice. Based on my review of the ROI, I find that the credible evidence did exist to title her for all the offenses and the ROI contains sufficient evidence to support the titling decision. In addition, I find that there was probable cause to believe [Applicant] committed all the offenses.? In accordance with DODI 5505.7 and AR [Army Regulation] 195-2, Criminal Investigations Activities, 9 June 2014, once a subject is titled, requests to amend or unfound offenses in ROI will only be granted if it is determined that credible information did not exist to believe that the individual committed the offense for which titled as a subject at the time the investigation was initiated, or the wrong person's name was entered as a result of mistaken identity. Neither of these two reasons exists. Credible information exists to believe that [Applicant] committed the offenses she was titled for, and the wrong person's name was not entered into the title block as a result of mistaken identity. Finally, no new, relevant, or material facts were submitted in the appeal to warrant revision of the titling determination. d. The CID memorandum from (Redacted), Quality Control, Polygraph Division, (Request for Amendment of Record – (Applicant)), 17 July 2019, opined: Upon further review of all documents in [Applicant's] amendment, I stand by my initial determination that credible information did exist at the time of the initial LER to warrant [Applicant] being titled as a subject in this investigation. There was no error in mistaken identity or error in application of the credible information standard at the time of the initial LER to support an amendment to this portion of the report. Additionally, [Applicant's] Request for Amendment failed to discover any substantive, new information warranting amendment to the probable cause determination reflected in the summary of this LER regarding the listed founded offenses. e. The CID memorandum from CW4 (Redacted), Investigative Operations (Request for Amendment of Record – (Applicant)), 20 July 2019, states he completed a review of the ROI to determine if the credible information standard was correctly applied when the applicant was indexed as a subject for the offenses of Cruelty of Subordinates, Assault, and Abusive Sexual Contact. CW4 (Redacted) states: In accordance with DODI 5505.7, there was no credible information to list then 2LT [Applicant] as a subject in the LER dated 5 Aug[us] [20]14 for the offense of Abusive Sexual Contact. There was an error in applying the credible information standard to this offense. The victim per his sworn statement, only detailed then 2LT [Applicant] massaging his shoulders, which was associated with the offense of Abusive Sexual Contact. As per MCM 2012, Abusive Sexual Contact requires sexual contact. Sexual contact is defined as the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch either directly or through the clothing, of the genitalia, anus; groin, breast, inner thigh, or buttocks of any person, with the intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person. Based on further review, the undersigned does not concur with the offense of Abusive Sexual Contact being committed by then 2LT [Applicant]. The undersigned does however concur with the Brigade Judge Advocate opine [sic] on 5 Aug[ust] [20]14, regarding then 2LT [Applicant] committing the offenses of Assault Consummated by a Battery and Cruelty and Maltreatment of Subordinates. f. The CID memorandum from CW4 (Redacted), Investigative Operations, (Request for Amendment of Record – (Applicant)), 29 July 2019, states he conducted a subsequent review of his 20 July 2019 review. CW4 (Redacted) states: On 20 Jul[y] [20]19, a subsequent review was conducted of the above Law Enforcement Report (LER) to determine if the credible information standard was correctly applied when [Applicant] was indexed as a subject for the offenses of Cruelty of Subordinates, Assault, and Abusive Sexual Contact. The offense of Abusive Sexual Contact and their elements were misinterpreted by the undersigned when comparing to the MCM 2012 Edition. When defining the term "sexual contact" it mentioned, "any touching, or causing another person to touch, either directly or through the clothing, and body part of any person, if done with the intent to arouse or gratify the sexual desire of any person." [Applicant] was indexed for the offense of Cruelty of Subordinates, Assault, and Abusive Sexual Contact on 5 Aug[ust] [20]14, when an Initial/Final LER [ROI] was dispatched following the CID Supervisor's determination the credible information to do so had been met. This determination was made based on what the supervisor determined to be credible witness statements, wherein [Applicant] subjected the victim to offensive comments on two separate occasions; assaulted the victim by intentionally throwing her patrol cap at the victim and hitting them [sic] on two separate occasions; and when she massaged the victim's shoulders without their consent. [Applicant] was interviewed and admitted to making the comments to the victim and throwing her patrol cap at them [sic] as well; however, she denied she intentionally massaged the victim's shoulders. On 5 Aug[ust] [20]14, a legal opinion was obtained from the supported Office of the Staff Judge Advocate who opined probable cause existed to believe [Applicant] committed the offenses of Cruelty of Subordinates, Assault, and Abusive Sexual Contact.? Based upon my re-evaluation of the LER [ROI] on 29 Jul[y] [20]19, [Applicant] was properly indexed as a subject utilizing the credible information standard; therefore, the request to be removed should be denied. It is also my belief that the cited offenses have the appropriate investigative finding based upon the legal opinion received; therefore, they should not be altered. g. The CID letter from the Deputy Director, U.S. Army Crime Records Center, 1 August 2019, noted, in part, "After careful review and consideration of your request and the evidence available, on behalf of Major General , USACIDC [U.S. Army Criminal Investigation Command], the Access and Amendment Refusal Authority for USACIDC records, and in accordance with Army Regulation 195-2 [Criminal Investigations Activities], your request to correct ROI is denied. This denial constitutes final action on behalf on the Secretary of the Army with respect to Army Regulation 195-2." It further noted the applicant had exhausted her remedies to correct the information contained in her CID record through that agency and has the right to appeal to the ABCMR. 14. On 20 October 2022, the ABCMR denied the applicant's request for removal of her name from the titling block of the CID ROI based upon the findings of the CID investigation and the legal review completed on 17 June 2019, stating there is credible information supporting the titling decision. 15. The applicant is currently serving in the rank/grade of captain/O-3 assigned as a company commander at Camp Casey, Korea. BOARD DISCUSSION: 1. After reviewing the application, all documents submitted by the applicant, and the evidence found within the applicant's military records, the Board determined that relief was warranted. The Board found that an error or injustice occurred when the ABCMR denied applicant’s request for removal of her name from the titling block in a decision dated 20 October 2022 (AR20190011318). The ABCMR denied relief because there was credible information supporting the titling decision. The law has changed and, although an individual can still be titled based on the existence of credible evidence, the standard to request correction or expungement now allows an applicant to show probable cause did not or does not exist that the offenses were committed or that applicant committed them. The Board can also consider other circumstances in the interest of justice when determining whether an individual should remain titled. 2. The Board reviewed the elements of each offense, the supporting evidence, and the standard for correction or expungement. The Board concluded that a preponderance of the evidence shows an injustice occurred when applicant’s name was not removed from the title/subject block of Law Enforcement Report, for all three offenses. 3. The Board considered the administrative note of the analyst of record and recommends the correction be completed as described. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing her name from the title block of Law Enforcement Report 0342-2014-CID108-XXXXX-XX. The Board recommends the correction be made in accordance with the administrative note. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): Since the GOMOR, 3 October 2014, was removed from the applicant's AMHRR as a result of the ABCMR determination in Docket Number AR20170018038, 21 March 2019, the copy of the GOMOR provided in these proceedings will not be filed with the contents of this record of proceedings in the applicant's AMHRR once finalized. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Manual for Courts-Martial, United States (2012 Edition), in effect at the time, consists of a Preamble, the Rules for Courts-Martial, the Military Rules of Evidence, the Punitive Articles, and the Nonjudicial Punishment Procedures (Parts I-V). This Manual shall be applied in a manner consistent with the purpose of military law. a. Article 93 (Cruelty and Maltreatment) states any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct. (1) Elements. (a) That a certain person was subject to the orders of the accused; and (b) that the accused was cruel toward, or oppressed, or maltreated that person. (2) Explanation. (a) Nature of Victim. "Any person subject to his orders" means not only those persons under the direct or immediate command of the accused but extends to all persons, subject to the code or not, who by reason of some duty are required to obey the lawful orders of the accused, regardless of whether the accused is in the direct chain of command over the person. (b) Nature of Act. The cruelty, oppression, or maltreatment, although not necessarily physical, must be measured by an objective standard. Assault, improper punishment, and sexual harassment may constitute this offense. Sexual harassment includes influencing, offering to influence, or threatening the career, pay, or job of another person in exchange for sexual favors, and deliberate or repeated offensive comments or gestures of a sexual nature. The imposition of necessary or proper duties and the exaction of their performance does not constitute this offense even though the duties are arduous or hazard or both. b. Article 120 (Rape and Sexual Assault generally) applies to offenses committed on or after 28 June 2012. (1) Rape. Any person subject to this chapter who commits a sexual act upon another person by: (a) using unlawful force against that other person; (b) using force causing or likely to cause death or grievous bodily harm to any person; (c) threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping; (d) first rendering that other person unconscious; or (e) administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct; is guilty of rape and shall be punished as a court-martial may direct. (2) Sexual Assault. Any person subject to this chapter who: (a) commits a sexual act upon another person by: (a.1) threatening or placing that other person in fear; (a.2) causing bodily harm to that other person; (a.3) making a fraudulent representation that the sexual act serves a professional purpose; or (a.4) inducting a belief by any artifice, pretense, or concealment that the person is another person; (b) commits a sexual act upon another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring; or (c) commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to: (c.1) impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person; or (c.2) a mental disease or defect, or physical disability, and that condition is known or reasonably should be known by the person; is guilty of sexual assault and shall be punished as a court-martial may direct. (3) Aggravated Sexual Contact. Any person subject to this chapter who commits or causes sexual contact upon or by another person, if to do so would violate subsection (a) (Rape) had the sexual contact been a sexual act, is guilty of aggravated sexual contact and shall be punished as a court-martial may direct. (4) Abusive Sexual Contact. Any person subject to this chapter who commits or causes sexual contact upon or by another person, if to do so would violate subsection (b) (Sexual Assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct. (5) Proof of Threat. In a prosecution under this section, in proving that a person made a threat, it need not be proven that the person actually intended to carry out the threat or had the ability to carry out the threat. (6) Defenses. An accused may raise any applicable defenses available under this chapter or the Rules for Court-Martial. Marriage is not a defense for any conduct in issue in any prosecution under this section. (7) Definitions. In this section: (a) Sexual Act. The term "sexual act" means: (a.1) contact between the penis and the vulva or anus or mouth, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or (a.2) the penetration, however slight, of the vulva or anus or mouth of another by any part of the body or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (b) Sexual Contact. The term "sexual contact" means: (b.1) touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person; or (b.2) any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body. c. Article 128 (Assault). (1) Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct. (2) Any person subject to this chapter who: (a) commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or (b) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon; is guilty of aggravated assault and shall be punished as a court- martial may direct. (3) Elements. (a) Simple Assault. (a.1) That the accused attempted or offered to do bodily harm to a certain person; and (a.2) That the attempt or offer was done with unlawful force or violence. (b) Assault Consummated by a Battery. (b.1) That the accused did bodily harm to a certain person; and (b.2) that the bodily harm was done with unlawful force or violence. (c) Definition of Assault. An assault is an attempt or offer with unlawful force or violence to do bodily harm to another, whether or not the attempt or offer is consummated. It must be done without legal justification or excuse and without the lawful consent of the person affected. Bodily harm means an offensive touching of another, however slight. 3. Department of Defense regulations and instructions define: a. Credible Information. Information disclosed or obtained by a DOD Law Enforcement Agency person that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained DOD Law Enforcement Agency person to presume the fact or facts in question are true. b. Probable Cause. Probable cause exists where the facts and circumstances within the officer's knowledge, and of which he or she has reasonably trustworthy information, are sufficient in themselves to warrant a belief by a person of reasonable caution that a crime is being committed or has been committed. 4. The National Defense Authorization Act, Fiscal Year 2021, section 545 (Removal of Personally Identifying and Other Information of Certain Persons from Investigation Reports, the Defense Central Index of Investigations (DCII), and Other Records and Databases), states not later than 1 October 2021, the Secretary of Defense shall establish and maintain a policy and process through which any covered person may request that the person's name, personally identifying information, and other information pertaining to the person shall, be corrected in, or expunged or otherwise removed from a law enforcement or criminal investigative report of the DCII, an index item or entry in the DCII, and any other record maintained in connection with a report of the DCII, in any system of records, records database, record center, or repository maintained by or on behalf of the Department. a. Basis for Correction or Expungement. The name, personally identifying information, and other information of a covered person shall be corrected in, or expunged or otherwise removed from, a report, item or entry, or record of the DCII, in the following circumstances: (1) probable cause did not or does not exist to believe the offense for which the person's name was placed or reported, or is maintained, in such report, item or entry, or record occurred, or insufficient evidence existed or exists to determine whether or not such offense occurred; (2) probable cause did not or does not exist to believe the person actually committed the offense for which the person's name was so placed or reported, or is so maintained, or insufficient evidence existed or exists to determine whether or not the person actually committed such offense; and (3) such other circumstances, or on such other bases, as the Secretary may specify in establishing the policy and process, which circumstances and bases may not be inconsistent with the circumstances and bases provided by subparagraphs (1) and (2). b. Considerations. While not dispositive as to the existence of a circumstance or basis set forth in subparagraph (1), the following shall be considered in the determination whether such circumstance or basis applies to a covered person for purposes of this section: (1) the extent or lack of corroborating evidence against the covered person concerned with respect to the offense at issue; (2) whether adverse administrative, disciplinary, judicial, or other such action was initiated against the covered person for the offense at issue; and (3) the type, nature, and outcome of any action described in subparagraph (2) against the covered person. 5. Army Regulation 190-45 (Law Enforcement Reporting) prescribes policies, procedures, and responsibilities for preparation, reporting, use, retention, and disposition of Department of the Army forms and documents related to law enforcement activities. It implements federal reporting requirements on serious incidents, crimes, and misdemeanor crimes. a. Paragraph 3-6a (Amendment of Records) states an amendment of records is appropriate when such records are established as being inaccurate, irrelevant, untimely, or incomplete. Amendment procedures are not intended to permit challenging an event that actually occurred. Requests to amend reports will be granted only if the individual submits new, relevant and material facts that are determined to warrant their inclusion in or revision of the police report. Requests to delete a person's name from the title block will be granted only if it is determined that there is no probable cause to believe the individual committed the offense for which he or she is listed as a subject. The decision to list a person's name in the title block of a police report is an investigative determination that is independent of whether subsequent judicial, nonjudicial, or administrative action is taken against the individual. b. Paragraph 4-7 (DA Form 4833 (Commander's Report of Disciplinary or Administrative Action)) states this form is used with the LER to record actions taken against identified offenders and to report the disposition of offenses investigated by civilian law enforcement agencies. 6. Army Regulation 195-2 (Criminal Investigation Activities), 9 June 2014, prescribes policies and procedures pertaining to criminal investigation activities within the Department of the Army. It prescribes the authority for conducting criminal investigations, crime prevention surveys, protective service missions, force protection and antiterrorism efforts and the collection, retention, and dissemination of criminal information. It delineates responsibility and authority between installation law enforcement activities and CID. Chapter 4 contains guidance for investigative records, files, and reports. a. Paragraph 4-4 contains guidance for individual requests for access to or amendment of CID ROIs. Requests to amend CID ROIs will be considered only under the provisions of this regulation. b. Paragraph 4-4b (Amendment of CID Reports) provides that: (1) Requests to amend or unfound offenses in CID ROIs will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. (2) The burden of proof to substantiate the request rests with the individual. (3) Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe the individual committed the offense for which titled as a subject at the time the investigation was initiated, or the wrong person's name has been entered as a result of mistaken identity. (4) The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. (5) The decision to make any changes in the report rests within the sole discretion of the Commanding General, CID. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. c. The Glossary defines creditable information as information disclosed to or obtained by an investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to indicate that criminal activity has occurred and would cause a reasonable investigator under similar circumstances to pursue further the facts of the case to determine whether a criminal act occurred or may have occurred. 7. DOD Instruction 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the DOD), 8 August 2023, establishes policy, assigns responsibilities, and provides procedures for a uniform standard for titling and indexing subjects of criminal investigations by DOD. a. DOD Components authorized to conduct criminal investigations will title and index subjects of criminal investigations as soon as the investigation determines there is credible information that the subject committed a criminal offense. Titling and indexing are administrative procedures and will not imply any degree of guilt or innocence. Once the subject of a criminal investigation is indexed in the DCII, the information will remain in the DCII, even if the subject is found not guilty of the offense under investigation, unless expungement is granted. b. If a subject's information requires expungement from or correction in the DCII, DOD Components will remove the information as soon as possible. Judicial or adverse administrative actions will not be taken based solely on the existence of a titling or indexing record in a criminal investigation. c. A subject is titled in a criminal investigative report to ensure accuracy and efficiency of the report. A subject's information is indexed in the DCII to ensure this information is retrievable for law enforcement or security purposes in the future. A subject who believes they were incorrectly indexed may appeal to the DOD Component head to obtain a review of the decision. DOD Components that conduct criminal investigations will make appropriate corrections or expungements to criminal investigative reports or the DCII as soon as possible. d. When reviewing a titling and indexing review request, the expungement official will consider the investigation information and direct the information be corrected, expunged, or otherwise removed when: (1) probable cause did not or does not exist to believe that the offense for which the covered person was titled and indexed occurred, or insufficient evidence existed or exists to determine whether such offense occurred; (2) probable cause did not or does not exist to believe that the covered person committed the offense for which they were titled and indexed, or insufficient evidence existed or exists to determine whether they committed such offense; or (3) such other circumstances as the expungement official determines would be in the interest of justice, which may not be inconsistent with the circumstances and basis in paragraphs (1) and (2). 8. DOD Instruction 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements), 21 July 2014, establishes policy, assigns responsibilities, and prescribes procedures for defense criminal investigative organizations and other DOD law enforcement organizations to report offender criminal history data to the Criminal Justice Information Services Division of the Federal Bureau of Investigation for inclusion in the National Crime Information Center criminal history database. It is DOD policy that the defense criminal investigative organizations and other DOD law enforcement organizations submit the offender criminal history data for all members of the military service investigated for offenses, to include wrongful use of a controlled substance, to the Criminal Justice Information Services Division of the Federal Bureau of Investigation, as prescribed in this instruction and based on a probable cause standard determined in conjunction with the servicing staff judge advocate or other legal advisor. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230008249 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1